Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Takings claims against counties under the Michigan & U.S. Constitutions; Regulating authority over lake levels near a dam; Michigan Natural Resources & Environmental Protection Act (NREPA); Maintenance of water level; MCL 324.30702(3); Decision not to change the water levels; Sanguinetti v United States
[This appeal was from the ED-MI.] The court held that defendants-Michigan counties were entitled to summary judgment on plaintiffs-landowners’ federal and state takings claims. It concluded they could not support their allegations that the counties intended to “take” their land by deciding not to change the water levels at the lake above the Edenville Dam. And findings that static liquification caused the dam’s collapse kept them from showing “that the government’s conduct amounted to ‘a substantial cause’ of the decrease in the value of” their property. The Michigan Department of Environment, Great Lakes, and Energy has regulatory authority over the dam. In compliance with the NREPA, the counties “assembled a task force to manage the lake above the dam. . . . Under Michigan law, any entity with ‘delegated authority’ to manage a lake, such as the task force, must ‘maintain’ a ‘court-determined normal [water] level.’” In 2019, the counties chose “to keep the lake levels where they had been for more than nine decades.” The dam failed almost a year later after days of historic rainfall. Plaintiffs argued that “the counties ‘took’ their properties by urging the state court to maintain the dam’s historic water levels, all while knowing that its spillway system ran the risk of overflowing.” However, an independent study by the Federal Energy Regulatory Commission revealed that “[u]ndetected defects since the dam’s construction led to a sudden loss of soil strength around the base of the dam during the rainfall.” The district court ruled that “the counties’ efforts to keep the water behind the dam at existing levels did not show that they intended to flood the downstream properties and ‘take’” plaintiffs’ land. The court agreed, explaining that all the counties did was to “preserve the lake depth at the same level that had existed for roughly a century. Wise or not, that action does not show that they meant to flood the downstream properties.” The court added “that the lake levels had little to do with the dam’s collapse. As the Federal Energy Regulatory Commission’s independent forensic team determined, it was soil vulnerabilities, in place since the dam’s construction, that caused the collapse.” Plaintiffs also failed to establish a taking under the Michigan Constitution where they could not establish causation. “The two causes of the collapse—heavy rains and static liquefaction—had nothing to do with the counties’ decision to seek permission from the state court to keep the lake levels where they had been for 90 plus years.” Affirmed.
Jury instructions; Right to a properly instructed jury; Lesser included offense instruction; MCL 768.32(1); People v Smith; Instruction on the lesser included offense of second-degree child abuse; M Crim JI 17.20 (reckless act or omission); M Crim JI 17.20a (act likely to cause serious harm); State of mind; MCL 750.136b(2); Reckless act; MCL 750.136b(3)(a); “Reckless”; Harmless error; People v Cornell; Prosecutorial misconduct; Admission of the victim’s photo into evidence; Relevance; MRE 401; Unfair prejudice; MRE 403
The court held that (1) the trial court did not err by refusing to read the proposed reckless-act second-degree child abuse instruction to the jury, (2) the prosecutor’s statement about defendant’s dishonesty did not violate his right to a fair trial, and (3) the trial court did not abuse its discretion by admitting a pre-crime photo of the victim into evidence. He was convicted of felony murder and first-degree child abuse in the death of his girlfriend’s young child. On appeal, the court rejected his argument that the trial court violated his due-process rights by refusing to read his requested jury instruction for second-degree child abuse on the basis of a reckless-act theory. “Even if some of defendant’s acts could be defined as reckless, the fact [he] injured the victim multiple times strongly supported the trial court’s conclusion that [his] actions went beyond mere recklessness. In addition, the manner in which [he] demonstrated to police officers how he twice banged the victim’s head against the table also indicates intentional or knowing conduct.” Further, any error was harmless. The court also rejected defendant’s claim as to the prosecutor’s statement regarding his alleged dishonesty, noting that while it “was likely inappropriate, it did not violate” his right to a fair trial. Finally, the court rejected his contention that the trial court abused its discretion when it admitted a pre-crime photo of the victim into evidence. “Showing before and after pictures of the victim, relative to when the crime occurred, is relevant to establishing the severity of the victim’s injuries and defendant’s state of mind.” Even if he had established the photo “was unfairly prejudicial,” he failed to show “how the jury’s viewing of [it] would have rendered the verdict unreliable.” Affirmed.
Search & seizure; Inventory search; People v Toohey; Principle that an officer may arrest an individual without a warrant if a misdemeanor is committed in the officer’s presence; MCL 764.15(1)(a); The law of the case doctrine; People v Hermiz
The court held that the trial court properly denied defendant’s motion to suppress. He pled guilty to possession with intent to deliver less than 50 grams of fentanyl and possession with intent to distribute an imitation controlled substance arising out of a search and seizure of his vehicle during a traffic stop. On appeal, as a preliminary matter, the court rejected the prosecution’s argument that defendant’s current issue on appeal was the same as the one raised in a prior application for leave to appeal that was denied for lack of merit, and thus was barred by the law of the case doctrine. “Defendant did not advance an argument concerning whether the inventory search was pretextual, which is exclusively what defendant argues in this appeal. Thus, [his] current issue was not actually decided in the prior appeal, and the law of the case doctrine does not apply.” Turning to the merits, the court rejected defendant’s claim that the trial court erred when it determined the inventory search of his vehicle was not pretextual, and therefore not an unreasonable search and seizure. It found the impoundment and subsequent inventory of his vehicle were reasonable. “It is undisputed that defendant did not have his driver’s license on his person during the encounter, which is a misdemeanor.” In addition, he “could not provide proof of insurance for his vehicle, which is a civil infraction.” The officer also verified that his “vehicle was not insured, which is another misdemeanor.” As such, the officer “had sufficient cause to arrest defendant for his misdemeanor offenses.” It was also “undisputed that defendant’s vehicle had been stopped on the side of a public road, and because the vehicle was uninsured, the vehicle could not have been driven away by anyone.” And because he “was the only occupant of the vehicle, after his valid arrest there was no one else to attend to the vehicle. Thus, under these circumstances, [the officer] acted reasonably by impounding defendant’s vehicle so as to not leave it unattended in the middle of the night on the roadway.” Once it was reasonably impounded, the officer “was permitted to conduct an inventory search pursuant to standardized police procedure.” Thus, the inventory search “did not violate defendant’s right against unreasonable searches and seizures, and the discovered evidence was not obtained unlawfully. The trial court did not err when it determined that neither the impoundment of, nor the inventory search of, defendant’s vehicle was unconstitutional.” Affirmed.
Ineffective assistance of counsel; Failure to ensure that the jury was properly instructed on the malice element of second-degree murder; Mullaney v Wilbur; Patterson v New York; Failure to request a jury instruction; Sentencing; Racist comments; Acquitted conduct
The court held that defendant could not establish an ineffective-assistance claim. Also, he was not entitled to resentencing on the basis of racist comments or consideration of acquitted conduct. He was convicted of second-degree murder and sentenced as a third-offense habitual offender to 45 to 60 years. Defendant argued “that defense counsel was ineffective by failing to ensure that the jury was properly instructed that, to prove the malice element of second-degree murder, the prosecution had the burden of disproving heat of passion and provocation beyond a reasonable doubt.” He principally relied on Mullaney. However, “Patterson limited Mullaney to situations where a fact is presumed or implied against a defendant.” That was not the case here. Further, in the context here, it was “unnecessary to delve further into Mullaney and the several cases from other jurisdictions cited by defendant.” Rather, the court agreed with the prosecution “that, given the applicable law in Michigan, defendant’s argument reflects ‘a desire to change the standard jury instruction . . . to a new version with different burdens of proof.’ It would not be proper for this Court to make the advocated-for changes.” Defendant also conflated “this desire with an evaluation of defense counsel’s effectiveness.” In the context of the issue presented here, the trial “court held that it ‘must determine whether defense counsel’s performance fell below an objective standard of reasonableness, and if so, whether defendant was prejudiced, which is the proper standard for reviewing defendant’s ineffective-assistance claim.’” The court held that for “the charged crime of first-degree premeditated murder, the trial court also instructed the jury on the lesser offenses of second-degree murder and voluntary manslaughter, as requested by defense counsel, and defendant was convicted of second-degree murder.” His claim “that to prove the element of malice for second degree murder, the prosecution has the burden of disproving heat of passion and provocation beyond a reasonable doubt, is misplaced. Furthermore, the trial court’s instructions clearly set forth the applicable elements and mirrored the Michigan Model Criminal Jury Instructions for second-degree murder, M Crim JI 16.5, and voluntary manslaughter, M Crim JI 16.9.” The trial “court’s instructions correctly informed the jury of all the required elements of second-degree murder and voluntary manslaughter, and informed the jury of the differences between the two offenses and the prosecutor’s burden of proof. Because the instructions fairly presented the issues to be tried, defense counsel’s failure to request an inapplicable instruction for a nonexistent element of second-degree murder was not objectively unreasonable.” Affirmed.
Divorce; Custody; Due process; Waiver; Property division; Elahham v Al-Jabban
The court concluded defendant-ex-wife waived her challenge to the trial court’s custody ruling and that the record did not support her argument. It also held that the trial court’s factual findings as to its property division “were not clearly erroneous, and its decision was fair and equitable under the circumstances.” The trial court awarded the parties joint legal and physical custody of their children. Defendant argued that it “erred and violated her right to due process by preventing her from presenting” certain newly discovered evidence at the bench trial. She further contended, by extension, that because excluding this evidence was not in the “children’s best interests, the trial court necessarily failed to properly address the best-interest factors.” She asserted the evidence “warranted her receiving sole legal and physical custody.” The court found that her argument was “unsupported by the record and, in any event, was waived by the parties’ pretrial stipulated custody agreement.” The trial court entered that “agreement into the record. This left only certain property issues to be addressed; custody was no longer an issue for the bench trial.” And the record showed no “attempt by defendant to subsequently challenge the custody agreement.” As to the property division, she asserted “she should have received the entirety of the $14,000 from selling the marital home, as an offset to the depletion of her retirement account” and that it appeared the trial court punished “her by improperly relying on perceived marital misconduct.” The court disagreed. There “was no dispute that the landscaping and Peloton bike debts constituted marital debt.” The trial court used “the $14,000 balance from the sale of the marital residence in part to pay off these debts. There also was no dispute that plaintiff solely made mortgage payments on the marital home throughout the divorce proceedings. The trial court determined that because defendant was responsible for half of these payments, plaintiff should be reimbursed. To pay for this reimbursement, [it] simply ordered that defendant’s share of the remaining $14,000 be absorbed by plaintiff. This was actually less than what defendant owed for reimbursement[.]” As to her contention the trial court punished her for “perceived marital misconduct” the record belied this claim. There was no reference to the conduct in question “in the trial court’s findings, or during the entire bench trial[.]” Affirmed.
Alleged fraud arising out of the sale of commercial property; Fraud, innocent misrepresentation, & silent fraud; Titan Ins Co v Hyten; Reasonable reliance; DBD Kazoo, LLC v Western MI, LLC; Duty to investigate; Effect of a no-reliance clause; Duty of disclosure; Mable Cleary Trust v. Edward–Marlah Muzyl Trust; Attorney fees; Fleet Bus Credit v Krapohl Ford Lincoln Mercury Co
The court held that the trial court did not err by granting summary disposition for defendant-seller, or by awarding attorney fees. Plaintiff alleged fraud, innocent misrepresentation, and silent fraud after plaintiff purchased a property from defendant and was later told by defendant’s former tenant that plaintiff owed $200,000 for tenant improvements. The court rejected plaintiff’s argument that the trial court erred by granting summary disposition because it reasonably relied on defendant’s statement that the money was paid when completing the closing. “The numerous events between the alleged misrepresentation and the closing of the transaction should have put plaintiff on notice that the tenant allowance needed to be investigated further. Plaintiff failed to duly investigate, so its reliance of the statement was not reasonable.” In addition, plaintiff’s “email to the seller, specifically asking for the confirmation of the payment for improvement expenses, is a supreme indication that plaintiff was aware that there might be an outstanding balance. Plaintiff should have been alerted to its need to investigate further when it did not get confirmation that any allowance owed was paid. Plaintiff cannot simply put aside its duty to exercise due diligence by using a ‘duty to disclose’ concept as a shield for inaction, specifically when plaintiff is put on notice that there is a reason to investigate.” The court also rejected plaintiff’s claim that the no-reliance clause did not protect defendant from a fraud claim in light of the timing and context of the transaction. Because the documents at issue “were signed after the misrepresentation and after the extended period of time specifically designated for an independent investigation, we disagree with plaintiff’s argument that the statement regarding the tenant allowance was done post-contractually.” The court next rejected plaintiff’s contention that defendant committed silent fraud when it failed to disclose that the $200,000 allowance was not paid. Plaintiff failed to show “that defendant’s single statement and its nonresponse to an email were ‘intended to deceive.’ Moreover, even silent fraud requires a showing of reasonable reliance.” The issue of “the outstanding reimbursement could have easily been discovered if plaintiff had exercised its right to contact the tenant during the due diligence period.” Finally, plaintiff claimed attorney fees “should not have been awarded because the trial court erred by deciding in favor of the defendant. However, the [trial] court did not error by granting summary disposition in favor of defendant, and therefore, it properly granted an award of attorney’s fees.” Affirmed.
Motion to terminate a PPO; Stalking, aggravated stalking, & cyberstalking under MCL 600.2950a(1); MCL 750.411h, i, & s; “Course of conduct,” “harassment,” & “unconsented contact”; Emotional distress; Freedom of speech; True threats; TM v MZ; Scope of the PPO
The court held that the trial court did not err by denying respondent’s motion to terminate the PPO, but did err by amending it to restrict him from coming within a quarter mile of the police station and city hall because this restriction substantially burdened his constitutionally-protected speech. It also found some of his speech was not constitutionally protected. Respondent was arrested by petitioner-police officer and other officers for disturbing the peace. He was released on bond and ordered to have no contact with petitioner. But he uploaded several videos on his social media sites, including videos claiming petitioner wrongfully arrested him. He also approached petitioner outside the police station. The charges were eventually dropped. Respondent continued to post videos, including one that showed a picture of petitioner’s family. The trial court granted petitioner’s PPO, which precluded respondent from approaching, contacting, or making online posts about petitioner. It then denied respondent’s motion to modify or terminate the PPO, finding his speech constituted true threats, and it also prohibited him from coming within a quarter mile of the police station or city hall. On appeal, the court rejected his argument that the trial court erred by continuing the PPO because there was not reasonable cause to issue it, noting his posts amounted to unconsented contacts. “The language and context of the posts indicate they were directed at petitioner and his family. Based on the volume and content of the posts, it is clear respondent intended for petitioner to view them. Likewise, respondent more directly notified petitioner of the posts.” In addition, petitioner suffered emotional distress. Because a statutory basis to issue the PPO in relation to respondent’s electronic communications existed under MCL 750.411h and i, the court was not required to address whether a statutory basis existed to issue the PPO under MCL 750.411s. But it agreed with respondent that a statutory basis did not exist under that section because no evidence in the record supported that the posts “caused others to contact and harass petitioner.” The court rejected his claim that the trial court erred by issuing and continuing the PPO because the speech that formed the basis for the PPO was constitutionally protected, noting “the PPO was properly issued in response to harassing speech directed at petitioner’s family.” Finally, it agreed with respondent that the amended PPO burdened substantially more speech than necessary by prohibiting him from coming within a quarter mile of the police station and city hall, finding a “substantial portion of this burden does not further the goal of protecting petitioner from the harassment of his family.” Affirmed in part, reversed in part, and remanded.
Termination under § 19b(3)(c)(i); Best interests; Parent-child bond
Finding no errors warranting reversal, the court affirmed the trial court’s order terminating respondent-mother’s parental rights to her child, MS. As to § (c)(i), the totality of the evidence supported the trial court’s finding that respondent “did not accomplish any meaningful change in the conditions that led to the court taking jurisdiction over MS.” Thus, the trial court did not clearly err when it held that there was no reasonable likelihood she “would rectify the conditions that led to adjudication within a reasonable time, given” MS’s age. Also, the trial “court correctly found that MS needed permanency and stability, which” respondent could not offer. The record reflected that “MS was supported and encouraged in his placement, had bonded with his foster parents, and was thriving in their care. For these reasons, the trial court did not clearly err by finding that termination of” the mother’s parental rights was in MS’s best interests.
Ineffective assistance of counsel in a child protective proceeding; Prejudice; Removal & placement of the children; MCR 3.963(A)(3), (B)(1), & (B)(4); In re McCarrick/Lamoreaux; Emergency removal; MCR 3.965(A)(1); Service; MCR 3.965(B)(4); Notice
The court held that respondent-mother failed to show that trial counsel provided ineffective assistance of counsel during the removal proceedings involving her children, PV, BLL, and BRL. The children were removed primarily on the basis of abuse allegations related to BRL. On appeal, the court rejected her argument that trial counsel provided ineffective assistance of counsel by failing to ensure she was properly served with the petition. “Because respondent has the burden of establishing the factual predicate for her ineffective assistance claim, and because [her] ineffective assistance claim with respect to service is predicated upon her assertion that she was not served with the petition, [she] has failed to establish the factual predicate for this claim of ineffective assistance.” Further, notwithstanding the “lack of clarity in the record regarding whether respondent was served with the petition before the preliminary hearing, [she] has failed to establish that trial counsel was ineffective for failing to ensure [she] was served with the petition because [she] has not established that she was prejudiced by the alleged lack of service.” As such, “the trial court was permitted to infer from the allegations of abuse as to BRL that (1) PV and BLL were at a substantial risk of harm or were in surroundings that presented an imminent risk to their safety and their removal was necessary to protect their health and safety, (2) the circumstances warranted issuing an order pending a hearing in accordance with MCR 3.965, (3) no other remedy except removal was reasonably available to protect PV and BLL, and (4) it was contrary to the welfare of PV and BLL to remain in respondent’s home.” The court also rejected her claim that trial counsel provided ineffective assistance by failing to challenge the trial court’s finding that it was contrary to the welfare of PV and BLL to remain in her care. “The trial court found that it was contrary to the welfare of the children to remain in respondent’s care after all the alleged abuse of BRL. [It] also noted that the reasonable efforts made to prevent or eliminate the need for removal included [the DHHS’s] review of respondent’s CPS history, parental and family interviews, hospital and medical staff interviews, review of medical documents, and a team meeting.” As such, it “made all necessary findings to order the removal of respondent’s children from her care under MCR 3.963(B)(1).”